INTRODUCTION
In the rapidly evolving landscape of artificial intelligence (AI), the rise of AI-generated creations has sparked fascinating inquiries into the realms of copyright, ownership, and authorship. As Al systems become increasingly capable of creating original and creative content, exploring the legal and ethical implications surrounding these works becomes imperative. This topic aims to unravel the intricacies of copyright in the context of Al-generated works, examining the challenges they pose in deciphering ownership and authorship.
UNDERSTANDING ARTIFICIAL INTELLIGENCE (AI)
The Origins of AI
Prof. John McCarthy, widely regarded as the Father of Artificial Intelligence (hereinafter, referred as AI), initially coined and defined Artificial Intelligence as “the science and engineering focused on creating intelligent machines, particularly intelligent computer programs.[1]” It’s worth noting that the idea of AI is not something entirely novel, rather it dates back to the post-World War II era. After WWII, a number of people independently started to work on intelligent machines. The English mathematician Alan Turing may have been the first. He gave a lecture on it in 1947.
AI and Human Interaction
AI primarily acts upon human orders and performs tasks based on pre-defined rules or learned patterns. While AI can generate new content or make creative suggestions, it does so based on the data it has been trained on and the instructions or input it receives from humans. The ability for AI to create entirely new work independently, with true creativity and originality, is still a subject of ongoing research and development.” Back in 2018, world’s first AI news anchor, known as “AI Anchor,” was developed and introduced by Xinhua News Agency, China’s state-run press agency. It’s important to note that the AI Anchor is not a fully autonomous AI entity. It requires pre-written scripts and text inputs to deliver news reports and cannot actively gather or analyse news information on its own. Its primary function is to serve as a news presenter, delivering content that has been generated by human journalists and editors.
WHAT IS COPYRIGHT?
Copyright is a branch of intellectual property. It aims to safeguard the work of the human intelligence. It is commonly recognized that the individual responsible for inventing a machine, authoring a book, or composing music typically possesses ownership rights over their respective creations. Such ownership encompasses certain legal consequences, and it is likely that you have been made aware of the fact that we are prohibited from simply reproducing or acquiring a copy of these works without due consideration of the rights of the owner. With each purchase of such items, a part of what we pay goes back to the owner as recompense to the owner, acknowledging the time, monetary resources, effort, and intellectual input invested in the creation of the work.
In India, the regulations concerning copyright are governed by the Copyright Act of 1957. Section 14[2] of the Copyright Act of 1957 defines “Copyright” as the exclusive rights of the owner to perform or authorise the doing of any activities (such as reproducing work, publishing work, adapting and translating work, and so on) in relation to a work. Furthermore, Section 17[3] of the Act specifies that the author of the work is the first owner of the copyright.
The Question of Copyright: Who is the copyright owner of a work created by autonomous artificial intelligence?
When multiple parties are involved in the creation of AI generated works, it becomes challenging to determine who should be given an upper hand from the following contributions: the person or organisation that trained the algorithm, or the user who utilises the software to create the music, art, or writing?
The “Monkey Selfie” Case
A notable example is the Naruto v. David Slater[4] case, widely known as “The Monkey Selfie case.” After a photographer left his camera equipment out for a group of wild macaques to explore, the monkeys took a series of photos, including selfies. One of the macaques, Naruto, took several images, including the notorious “monkey selfies.” Once these pictures were shared with the public, a legal debate emerged about who should own the rights to these photos-the human photographer or the macaques who pressed the camera button? It, thus, created a pertinent question as to whether non-humans—whether they be monkeys or artificial intelligence machines—can claim copyrights to their creations.
It has long been the posture of the U.S. Copyright Office that there is no copyright protection for works created by non-humans, including machines. Therefore, the product of a generative AI model cannot be copyrighted.[5] However, under United Kingdom (UK) law, “computer-generated” work is protected by copyright for 50 years following its creation, and this includes works created autonomously by a machine without a human author.[6]
According to Section 2(d)(vi) of the Copyright Act 1957[7], the term “author” means:
“in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;”
Thus, if an AI produces any content using human intervention as a basis, ownership of copyright typically depends on the individual who initiated or caused the creation of the work. If a human, such as an artist or a programmer, programmed and guided the AI to generate the work according to their instructions or input, then that person would be regarded as the author and would generally hold the copyright.
Testing the Notion of Originality
The judiciary has established various criteria to recognize the uniqueness of a work in their legal rulings. Although test of originality depends upon the facts of the case the basic principles of each test are the same.
It was held in Macmillan v Cooper[8], “For a work to original, it should be the product of the labour, skills and capital of one man which must not be appropriated by another, not the elements or the raw materials, upon which the labour and skills and capital of the first had been expanded.” In Eastern Book Co. V. Navin J. Desai[9], the Delhi High Court held that head notes of law reports can be original literary work if they are prepared by the author using his skills, labor and judgment. To claim copyright an author has to show some work done by him, this test is known as “Sweat of brow” test. The test was however replaced by “Minimum Creativity” test. In Eastern Book Co. V. D B Modak[10], Supreme Court held that “to claim copyright in a compilation, the author must produce the material with the exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of mere skill and labour.”
Technology routinely tests copyright. For example, at the end of the last century, the question was whether DNA — the chemical recipe for a human being — could be copyrighted. (No.)[11] Years earlier, cameras begged the question of whether photographs could be copyrighted. (Yes.)[12]
CONCLUSION
The advancements in AI and the emergence of AI-generated works require Indian copyright law to adapt to these changes. However, to accomplish this, it must find a balance by implementing well-defined guidelines and incorporating ethical considerations that address the competing interests of AI researchers while safeguarding the rights of creators and copyright holders.
[1] John McMarthy, What is artificial intelligence? Stanford University, (Nov. 12, 2007), http://jmc.stanford.edu/articles/whatisai/whatisai.pdf
[2] The Copyright Act, 1957, s. 14, No. 14, Acts of Parliament, 1957 (India).
[3] The Copyright Act, 1957, s. 17, No. 14, Acts of Parliament, 1957 (India).
[4] 888 F.3d 418 (9th Cir. 2018).
[5] Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin.com (Apr. 18, 2023) https://builtin.com/artificial-intelligence/ai-copyright
[6] Copyright, Designs and Patents Act 1988 (CDPA), c. 48, s. 178 (UK).
[7] The Copyright Act, 1957, s. 2(d)(vi), No. 14, Acts of Parliament, 1957 (India).
[8] Macmillan v Cooper, AIR 1924 PC 75.
[9] Eastern Book Co. V. Navin J. Desai, (2001) PTC 57 (Del).
[10] Eastern Book Co. V. D B Modak, 2008 (36) PTC SC.
[11] Willem P.C. Stemmer, “How to Publish DNA Sequences With Copyright Protection,” Nature, March 2002, https://www.nature.com/articles/nbt0302-217#:~:text=However%2C%20natural%20DNA%20sequences%20are,by%20scientists%2C%20but%20simply%20uncovered
[12] Ignacio Palacios, “The Very Old Debate About Image Manipulation,” The Luminous Landscape, June 24, 2015, https://luminous-landscape.com/the-very-old-debate-of-image-manipulation/
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